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The scandal of aboriginal incarceration in Canada is getting worse. The Correctional Investigator has advised that the aboriginal prison population has increased 43 per cent in the past five years. Métis, Inuit and First Nations people make up 23 per cent of the prison population, although they comprise just 4 per cent of the population of the country.

The reasons for this disparity are undoubtedly complex, and worthy of serious study. But the startling fact remains. Levels of imprisonment in Canada’s aboriginal communities are higher than the overall incarceration rate in the United States — a nation that famously has the highest rate of imprisonment in the world and probably in history. There are 2.3 million people in American jails and prisons, with another 4 million under some form of community-based correctional control. No other country matches that, not by a long shot.

The U.S. rate is seven times higher than Europe, and six times higher than Canada. According to the metric that criminologists use to make comparisons, the U.S. imprisonment rate is 730 per 100,000 people. Canada remains at a safe distance: 140 per 100,000, with about 38,000 people in custody on any given day last year. When that number is broken down, however, the intensity of the impact of incarceration on aboriginal communities is revealed. Astonishingly, aboriginals are imprisoned at a rate in excess of 910 per 100,000 people.

Canada is fond of American comparisons, particularly when it comes to punishment. As the political sociologist Seymour Martin Lipset once put it, Canadians have a “self-defining critique of American punitiveness.” We tend to assume that even in this era of “tough on crime” policies, things are far worse south of the border. We abolished the death penalty. We don’t have supermax prisons. Growth in the Canadian prison population is relatively small, despite new laws causing a bump in growth (particularly in provincial jails).

And, while few Canadians know much about what happens in our prisons, there is a general sense that American prisons must be worse. America has private prisons, and political lobbying to match. We don’t. America has a distinct legacy of slavery, evident in convict leasing, Jim Crow laws, and now mass incarceration. We don’t.

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And while Canadians wept as we watched Ashley Smith die needlessly in a segregation cell, many view her case as a unique tragedy, rather than an indication of systemic failure.

Those who work on the ground in Canada know that these assumptions are incomplete. Evidence from prisoners, correctional officers, the federal ombudsman and the occasional judge tells us that conditions in Canadian prisons can be severe. Solitary confinement is used in ways that are often indistinguishable from American supermax prisons. Dozens of mentally ill prisoners, who tend to frustrate under-resourced guards along with fellow prisoners, are locked down for extensive periods of isolation.

A recent flood of policy changes seems designed to stamp out any rehabilitative intent. We have seen the cancellation of prison religious providers, the reduction of already low prison wages, and the elimination of standards mandated by the constitution in the Corrections and Conditional Release Act. Access to college courses, widely available in U.S. prisons, is largely non-existent. Even voluntary programs of university-level instruction have been forcibly cancelled. It is unacceptable that this harsh and increasingly non-rehabilitative system is concentrated on aboriginal communities.

The United States has also had to grapple with the concentration of imprisonment on racial minorities, particularly young black men. Recent evidence indicates that this may not be an intractable problem. On March 1 a rare piece of good news came from Marc Mauer, director of the U.S. Sentencing Project. Incarceration rates for black Americans dropped sharply from 2000 to 2009, especially for women. This improvement is attributed to drug law reforms and the restoration of some judicial discretion in sentencing.

In Canada, we are moving backward: judicial discretion is on the chopping block and the Harper government has recently added mandatory drug sentences. These are not the reforms needed to address our aboriginal prison system.

Lisa Kerr is a Trudeau Foundation Scholar and doctoral candidate at New York University, Faculty of Law.

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